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Privacy/Publicity Lecture

Privacy/Publicity Lecture

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Privacy 2011 spring Privacy 2011 spring Presentation Transcript

  • PRIVACY and PUBLICITY
  • Development of Privacy Law
    • "The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery . . . ”
    • by turn of century states began to recognize a civil law right of privacy
    • some passed statutes
    • in others -- common law
    • first laws prohibited using person's name or picture for advertising purposes without consent
    • privacy primarily matter of civil law (tort law)
    • criminal statutes protect privacy in some narrow circumstances
  • Roberson v. Rochester Folding Box Co. (1902)
    • lithographed picture of girl on boxes of flour
    • she objected
    • lower courts found right of privacy
    • NY Court of Appeals disagreed
    • 1903 -- NY legislature acted
  • Four distinct forms of privacy invasion
    • commercial appropriation of name or likeness
      • [Right of Publicity]
    • public disclosure of embarrassing private facts
    • placing an individual in a false light
    • intrusion upon physical seclusion
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  • appropriation or misappropriation
    • commercial use of a person's name or likeness without consent
    • reason: individuals alone should have the right to control the marketing or exploitation of their own person
  • Right of Publicity
    • entertainers, sports figures, and other well-known personalities
    • names or likenesses or character created used to promote a product or for other commercial gain
    • includes "identity"
  • Appropriation v. Right of Publicity
    • Appropriation
      • individuals
      • personal right to privacy
    • Right of Publicity
      • celebrities
      • property right involving commercial value of celebrity identity
  • commercial use
    • exploitation directly for another's trade or self- enrichment purposes
    • advertisements or promotions for products or services
    • product endorsements
    • appearance in a news report not a commercial use
    • exception: Hugo Zacchini
  •  
    • no First Amendment privilege when broadcast performer's entire act
    • (narrow, rare and much criticized exception)
    • many communications are hard to categorize
    • public relations publications that include legitimate news or educational information
  • SFSU IS GREAT!
    • Most San Francisco State Students say they received an excellent education.
    • Application deadlines are . . .
  • BECA Faculty Top-Notch!
    • Broadcast and Electronic Communication Arts students say that BECA faculty are among the best in the world.
  • Buy the Book!
    • Sight Sound Motion is the ultimate book on media aesthetics and is endorsed by San Francisco State students.
    • What about magazines and books?
  • Playgirl case
    • statute's (NY) language prohibited uses without consent "for purposes of trade"
    • court said clear picture had been used for the "purpose of trade"
    • biggest problem for magazines that publish fictional works
  • what about the cover of a magazine or book?
    • general rule: cover picture is safe if it is derived from the newsworthy or educational content within
    • person needs to be subject of the content -- otherwise picture deemed to be for a purely, commercial, promotional purpose
  • Incidental Uses
    • distinction also made whether individual's identity is incidental to the commercial purpose or directly in support of it
    • but beware: rarely is a person's appearance in a commercial passage purely incidental
    • when in doubt -- do without
    • (or get consent)
  • Special Problem: Station Promotion
    • news footage, not used in news, but in a promo spot
    • verdict for broadcaster
    • victim's appearance was merely incidental to commercial purpose of spot
    • identity of the accident victim was immaterial
    • individuals must be readily identifiable in order to sue successfully for appropriation
  • name or likeness
    • broad concept
    • includes nicknames, voice or other mark of personal identity
    • personal identity by whatever method of reference
  • Here's Johnny Portable Toilets, Inc.
    • "the world's foremost commodian"
    • "a celebrity has a protected pecuniary interest in the commercial exploitation of his identity . . . "
  •  
  • what about look-alikes?
    • imitation -- though the sincerest form of flattery -- usually not appropriation
    • but if public is confused -- verdict for the celebrity
    • other courts have found for the celebrity on theory of unfair competition under Lanham Act (false representation of association -- "likelihood of confusion")
    • law unsettled -- no one rule
  • what about people no longer living?
    • some states -- claim survives
    • California -- creates transferable property right in "name, voice, signature, photograph or likeness" for 50 years, if such had commercial value at time of death
    • can avoid all these problems if get consent
    • consent should be in writing even if initial use will not be commercial
    • gratuitous consent may be withdrawn (not binding)
    • only a knowing consent is a valid consent
  • Appropriation v. First Amendment
  • Disclosure of Private Facts
    • public disclosure of embarrassing private facts that are not newsworthy and when such disclosure would be highly offensive to a reasonable person
      • runs counter to idea that media free to disseminate truthful information
      • so this tort is quite narrow and plaintiff's verdicts infrequent
  • Private Facts
    • plaintiff must prove information was private
    • tax returns are privileged
    • limited, selective prior disclosures will not necessarily diminish private nature of facts
    • (may disclose, in confidence, to family, close friends, or an employer)
    • events that occur in public view are almost always public
  • "A Strange Kind of Love"
    • photo of Pittsburgh Steelers fan with fly open
    • court agreed magazine had deliberately exhibited the fan in an embarrassing manner
    • but no recovery -- photo simply did not reveal anything private
    • photo taken at a public event
    • everyone present could see
    • knowing or implied consent
    • not a matter concerning a private fact
    • however if embarrassment instantaneous and involuntary -- don't forfeit right of privacy just because at moment happened to be part of a public scene
  • public records
    • public record privilege applies to all branches of government
    • but not all documents or proceedings are public
    • courts may seal documents
  • other lawfully obtained facts
    • may you keep your name private in some circumstances?
  • Highly Offensive
    • highly offensive and objectionable to a reasonable person of ordinary sensibilities
    • not a subjective test -- i.e., that the person was upset
    • must clearly overstep the prevailing notions of decency
  • Newsworthiness Defense
    • does the public have a right to know these facts?
    • difficult to draw line between newsworthy and not newsworthy
    • California uses a balancing test: the social value of the facts disclosed v. the depth of the intrusion into private affairs
    • other places -- ask jury to consider whether the disclosures are in line with customary news content
    • hazy boundaries
    • learn basic rules and factual situations that signal danger
    • unlike libel -- counterspeech, retraction nor correction will ease plaintiff's suffering
  • lapse of time
    • Red Kimono case
    • different result today?
  • do rehabilitated criminals have privacy claims regarding past life?
    • general rule that recall of past news events is a legitimate public endeavor
    • long-past private matters should not be published unless would be legitimate news today
    • get consent
    • don't forget the ethical considerations
    • public benefit v. private trauma
  • False Light
    • representation of an individual in a false and highly offensive manner before the public
    • often accompanies claim of defamation
    • aim is to compensate for personal embarrassment and anguish -- not damage to reputation
    • available only to individuals
    • distortion
    • embellishment
    • fictionalization
  • distortion
    • mismatching the audio and video (pull visual element out of the file)
  • Study shows . . .
    • SFSU students more likely to
    • Drop out
  • embellishment
    • false information added to journalistic accounts
  • fictionalization
    • use of real, identifiable characters in imaginary tales
    • test: could a reasonable person reading your story believe the fictional character is in fact this particular real person?
    • like libel, must show identification and publication
    • however, in libel -- publication to one person is sufficient but in false light need dissemination to the general public
    • actual malice required
    • opinion protected
    • some states don't recognize tort
  • Intrusion
    • intentional invasion of a person's physical seclusion or private affairs in a manner that would be highly offensive to a reasonable person
    • occurs in the information- gathering process
    • if information published then invasion of privacy, etc.
    • not common
    • plaintiffs rarely win
    • question: was the individual in a place where she could reasonably expect privacy?
    • no expectation in public
    • is in private residences, hospital rooms, ambulances, hotel rooms, private offices, dressing rooms, public toilet stalls
  • what about things placed in the trash?
    • same standard of "highly offensive”
    • public benefit v. individual privacy
    • but news gathering not yet recognized as providing overriding public benefit
  • use of subterfuge
    • some cases have allowed subterfuge in getting consent
    • risk we all take in dealing with others
    • but recording and intercepting actions, conversations a different matter
  • Public Places
    • Jackie got an injunction against Galella -- he had to stay 25 feet from Jackie and 30 feet from her children
    • harassment -- criminal violation under New York law
    • Intentional Infliction of Emotional Distress
    • Fraud
    • Breach of Contract (newsworthiness might outweigh)
  • Criminal Protections
    • restrictions on disclosure
    • hard to prevent media from disclosing what lawfully know
    • may prevent govt employees/participants from talking
  • restrictions on information gathering
    • electronic surveillance
    • Electronic Communications Privacy Act of 1986
    • anti-wiretap statute
    • state laws